The STOP Underrides! Bill was re-introduced into Congress on March 5, 2019. On March 7, the Owner Operator Independent Drivers Association wrote a letter of opposition and sent it to the bill’s sponsors.

The following is a combination of the OOIDA letter (bolded) and my response.

Response to the OOIDA Letter of Opposition

(dated March 7, 2019)

To the STOP Underrides Bill

Dear Senator Gillibrand and Senator Rubio,

The purpose of this letter is to convey the Owner-Operator Independent Drivers Association’s (OOIDA) strong opposition to S. 665, the Stop Underrides Act, which would mandate the installation of rear, side and front underride guards on all commercial motor vehicles (CMV) and trailers that exceed 10,000 pounds in gross vehicle weight (GVW).

OOIDA is the largest trade association representing the views and interests of small-business truckers and professional drivers. We have more than 160,000 members nationwide, all of which would be directly impacted by S. 665.

This raises an interesting question. I have personally asked the management of OOIDA to provide me with information about how many owner-operators own their own trailer. He said that he did not have those numbers. Although numbers (1.2 trailer/owner-operator) are listed online, I have seen no documentation that this is the case. I’d love to have proof of this claim but, until then, it does not seem valid to make a blanket statement that all of the OOIDA members would be directly impacted without spelling out what that means.

Over the last several decades, the National Highway Traffic Safety Administration has considered numerous options involving underride guards, but has consistently concluded federal mandates would be impractical and costly, thus outweighing any perceived safety benefits. The reintroduction of the Stop Underrides Act intentionally disregards this reality and ignores the safety, economic, and operational concerns we raised with you last Congress.

Many Public Comments were submitted to the Federal Register, in response to NHTSA proposed underride rulemaking, which raised questions about the validity of the NHTSA cost/benefit analysis. Additionally, Senator Gillibrand responded to all of the concerns, which OOIDA raised in their January 2018 letter, in a letter which she sent to OOIDA on March 16, 2018. Read her reply here.

To be clear, OOIDA supports efforts to improve highway safety. In fact, we agree the existing rear underride guard on trailers – commonly referred to as a “DOT Bumper” in the United States – could be enhanced to reduce the risk of rear underrides for personal automobiles. If the Canadian standard was applied in the U.S. on the manufacture of new trailers, we would not oppose it.

Actually, many of the trailers on the road today in the U.S. already meet the Canadian standard because U.S. transport companies which cross the border need to comply with it. So the U.S. trailer manufacturers responded to that situation. However, those are the same guards which have been tested by the IIHS and found to be ineffective and too weak to withstand offset crashes — even at 35 mph. So simply upgrading the U.S. standard to meet the Canadian standard would not solve the problem — underride, with deadly Passenger Compartment Intrusion (PCI), would still be occurring.

The eight major trailer manufacturers have exceeded the Canadian standard by stepping up to meet the new de facto standard of the IIHS ToughGuard award. It is that standard which we are requesting be mandated by the STOP Underrides legislation to ensure that it is installed on every new trailer manufactured. As of this date, some manufacturers are still selling the older, ineffective rear guard as Standard with the improved guard being offered as Optional.

In addition, there are millions of existing trailers on the road today which still will allow deadly passenger compartment intrusion upon collision. Yet, there are Retrofit Kits available for $500 (or less) which can be installed to upgrade the safety level of rear guards — compared to the $125 it would cost to replace rusted, cracked or bent horizontal tubes at the existing level of ineffective protection.

Unfortunately, S. 665 goes too far. Regarding rear underride guards, it would mandate truckers install them on trailers that can’t physically accommodate them, such as low boys, household goods trailers, auto transporters, etc. The mandate would retroactively apply to all trailers, including those nearing the end of their service.

This comment ignores a basic fact about federal standards. If a CMV is designed in a way that underride is not possible (i.e., there is no geometric mismatch because the truck body is low enough to engage with the passenger vehicle bumper), then, of course, the manufacturer or owner can apply for an exemption. Why would we demand installation of unnecessary equipment?

665 would also mandate the installation of side underride guards. While existing technologies may reduce passenger compartment intrusion in certain situations, the bill fails to recognize numerous other issues limiting the real world practicality of side underride guards. For example, installation of the equipment would unquestionably create challenges for truckers navigating grade crossings and high curbs, backing in to sloped loading docks, properly utilizing spread-axle trailer configurations, conducting DOT-required trailer inspections, and accessing vital equipment located under the trailer – such as brakes. We also want to reiterate S. 665 would mandate side underride guards on trailers that can’t physically accommodate them, such as intermodal, bulk, specialized, and flatbed trailers.

This comment uses an interesting choice of words, e.g., claiming that side guards would “unquestionably” create challenges for truckers. As far as I can tell, these statements are all based on speculation rather than proven fact or documentation. As far as ground clearance (a complaint heard over and over), please see this University of West Virginia study: Development of Design Vehicles for Hang-Up Problem

Here is a quote from the inventor of the AngelWing side guard, Perry Ponder:

AngelWing has undergone extensive standard industry testing and analysis including durability track testing. Designed by a trailer engineer (me), AngelWing works in harmony with existing trailer designs with no effect on the trailer structure or durability.

Here is a video of a trailer with Aaron Kiefer’s SafetySkirt side guard backing over a raised median without any problem:

Further, because the bill applies the underride guard mandate to all CMVs in excess of 10,000 pounds GVW, it would require dually trucks pulling wedge trailers – commonly referred to as “hot shots” – to install these devices. Yet, the exact same dually not operating commercially wouldn’t be required to have them. Here again, most wedge trailers can’t physically accommodate what this bill would mandate.

As stated previously, this comment ignores a basic fact about federal standards. If a CMV is designed in a way that underride is not possible (i.e., there is no geometric mismatch because the truck body is low enough to engage with the passenger vehicle bumper), then, of course, the manufacturer or owner can apply for an exemption. Why would we demand installation of unnecessary equipment? If it is a matter of a unique truck design, which would allow underride if there were no added protection but presents installation challenges, then I would call upon the engineering community to create collaborative solutions. In fact, the bill encourages such communication through the establishment of a Committee On Underride Protection.

665 also mandates a front underride guard on CMVs. Admittedly, we’re less familiar with these devices, because they aren’t currently commercially available in the U.S. However, similar to the rear and side underride guard provisions, this requirement would likely be extremely problematic for reasons we can discuss in more detail at a later time.

I am confident that, if OOIDA genuinely delved into the front underride/override problem — as I did — they would find that there are practical solutions available to change the outcome of crashes which involve trucks rear-ending passenger vehicles or head-on collisions. In fact, U.S. truck manufacturers have patents for front underride protection devices and some are already selling them in countries which have a FUP mandate — including Europe, India, Japan, and Australia.

We would also point out that the bill would require the creation of performance standards for underride devices. Meaning, if an underride guard fails to meet the standard while in operation, the vehicle would be placed out of service and unable to operate. We have no idea how a trucker would get a side underride guard, weighing approximately 1,000 pounds, delivered to the roadside.

Admittedly, it is a challenge to get trucks safely off the road to a repair facility when they have underride protection in a condition which makes them unsafe to travel around. The Commercial Vehicle Safety Alliance ( CVSA ) has addressed this concern in their consultation with the bill sponsors regarding the bill language. But do we just ignore the problem when it is challenging? Do we simply allow the truck driver to continue on with business as usual? Besides, ideally, the truck driver/transport company will do regular pre-trip inspections of the underride protection and address the problem with preventive maintenance or appropriate repair BEFORE the truck ever gets on the road.

Furthermore, OOIDA does not appear to have done their research regarding the weight of side guards currently available. The AngelWing upon early production was weighing in at 800 pounds and has, since then, been reduced to about 500 pounds. Likewise, the Wabash Trailers side guard prototype was reported to weigh approximately 500 pounds.

Nor do we have any idea how the equipment would be installed on the roadside. In sum, the bill mandates devices that aren’t practical, that don’t physically work, and that would create operational impossibilities. We should also note that the bill impacts millions of CMVs, trailers, straight trucks, and other vehicles. With an estimated price tag of tens of billions of dollars, S. 665 would implement the single most costly federal trucking mandate in history.

It seems irresponsible to make a claim about an estimated price tag of tens of billions of dollars. DOT is reportedly a data-driven agency. Please provide specifics as to the equation for reaching conclusions about a safety countermeasure which could save countless lives. In fact, the previous cost/benefit analysis reported by NHTSA actually uses underride data which is well-known to be undercounted. As is also a widely-accepted fact, once the safety equipment is mandated, solutions and manufacturers are likely to rise up to meet the need. Costs will likely go down from their current amounts with competition in the marketplace and improvement of designs/products.

Let’s do some of our own back of the envelope math. Just for the sake of discussion, let’s say that a tractor-trailer owner put $3,400 into underride protection equipment — and that’s for a retrofit. Divide that $3,400 into 15 years average trailer life and you have $227/year or $0.62/week. Don’t forget IRS Section 179 allows a tax deduction for business equipment.

And on what information does OOIDA base their claim that “S. 665 would implement the single most costly federal trucking mandate in history”? From what I read, the Electronic Logging Device (ELD) mandate cost truck owners on average $495/truck/year. And read what that website says about the rumors spread about prohibitive costs of ELDs which would put trucking companies out of business (sound familiar?): Considering the overall operational costs of a trucking business, ELD investment doesn’t rank when compared to operating expenses, like fuel, liability insurance, tractor-trailer equipment, and permitting costs.

Is it truly inappropriate to think that safety equipment, like underride protective devices, should be considered a normal, acceptable Cost Of Doing Business (CODB)?

While we’re at it, please answer a question which I have had for several years now. . . even if you estimate the industry’s safety budget at $9.6 billion, as Chris Spear did in a conversation with me in March 2017, please tell me what percentage that is of the total operating budget — or revenue or profit or whatever figure you want to use — for the trucking industry.

Well, if they don’t want to tell me, I’ll have to estimate it myself. This article quotes ATA as saying that in 2017 the trucking industry revenue was $700.3 billion. That would mean that the safety budget (which included drug tests for drivers) was 1.4%. What is included in that?

These investments include technologies on the truck such as collision avoidance systems, electronic logging devices for driver hours of service compliance and video event recorders. They also include driver safety training, driver safety incentive pay, and compliance with safety regulations (e.g., pre-employment and random drug tests and motor vehicle record checks). The largest investment category is in driver safety training, equaling 36% of all investment. Driver safety training was followed by expenditures in compliance with safety rules (26%), on-board safety technologies (25%) and driver safety incentive pay (13%). https://www.trucking.org/ATA%20Docs/News%20and%20Information/Reports%20Trends%20and%20Statistics/06%2028%2016%20-%20Trucking%20Industry%20Invests%20%249%205%20Billion%20in%20Safety%20Annually.pdf

OOIDA hasn’t shared with us their back of the envelope math equation. But here is mine:

Let’s say that there are approximately 2 million existing trailers and 300,000 new trailers/year. Make that 2,500,000 or even 3,000,000 x $3,000/tractor-trailer = $9,000,000,000 or $9 billion. That would be 1.3% of the revenue amount. Is that an unreasonable cost of doing business?

If 1000 lives were saved (plus untold catastrophic, debilitating injuries prevented), that would be $9,000,000/life saved. The DOT sets the Value of a Saved Life (VSL) at $9.6 million.

Obviously, that amount includes retrofitting existing trailers which would not have to be repeated every year. But, even with this rough math calculations, I’m having a hard time seeing what is causing a panic.

Furthermore, is OOIDA helping their membership to look at the broad picture of how comprehensive underride protection can actually benefit the trucking industry? That includes the greatly decreased insurance risk when truck crashes lead to fewer fatalities.

We would encourage you to learn more about the trucking industry, including its incredible diversity, before continuing to promote S. 665. One-size-fits-all solutions simply don’t work.

I would encourage OOIDA, and others in the trucking industry, to thoroughly do their due diligence on the underride problem and solutions. Take it on as collaborative challenge to reach a mutually-beneficial goal: safer trucking. Take advantage of the upcoming opportunity to witness an underride crash and two successful side underride protective devices firsthand at the D.C. Underride Crash Test on March 26.

As a bonus, here are my responses to concerns expressed by the American Trucking Associations (ATA) about the STOP Underrides! Bill:

Question for the ATA: Is it necessary to choose EITHER crash avoidance OR occupant protection — not BOTH?

My knee-jerk reaction to the ATA Letter of Opposition to the STOP Underrides! Bill

Back-of-the-Envelope Math for Underride Protection Retrofit Cost/Trailer Equation